Punjab-Haryana High Court
State Of Punjab vs Raman Kumar on 26 September, 1997
Equivalent citations: 1998CRILJ737
Bench: K.S. Kumaran, Swatanter Kumar
JUDGMENT Harphul Singh Brar, J.
1. After hearing an application for grant of leave to appeal under Section 378 Cr. P.C. against a judgment of acquittal, a Division Bench of this Court on May 18, 1992 ordered as under :
Heard. The perusal of the provisions of Rules 14 and 16 of the Prevention of Food Adulterations Rules, 1955 (for short 'the rules') reveals that the dominant consideration in sending the sample of food for analysis in clean dry bottles, jars or any other suitable container is to prevent leakage, evaporation, or in the case of dry substance, entrance of moisture. Thus, the finding of the trial Court that since the sample of red chillies powder was taken in a wrapper of strong thick paper in violation of the mandatory provisions of Rules 14 and 16 of the Rules is not exfacie well founded. In this view of the matter, it requires reconsideration by a larger Bench of this Court as the trial Court had placed reliance on a Division Bench decision of this Court in State of Haryana v. Gurdhan Dass Criminal Appeal No. 1053 of 1975.
Leave to appeal allowed. Admitted to Full Bench. The matter be placed before Hon'ble Chief Justice for constituting a Full Bench. The accused-respondent through his counsel is directed to furnish personal bonds and surety bonds to the satisfaction of Chief Judicial Magistrate, Hoshiarpur within a fortnight of this order, undertaking to surrender before him in case of his conviction. A copy of this order be given Dasti to the learned counsel for the respondent.
Sd/-
(J. S. Sekhon) Judge.
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(Amarjeet Chaudhary) Judge.
May 18, 1992.
2. This is how this appeal has come up for hearing before us.
3. The facts of the case in brief taken out from the evidence on the file are that Ram Kumar, respondent, was accused and charged under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (hereinafter to be called as 'the Act') for having kept in his possession in his shop situated in Krishan Nagar, Hoshiarpur, 12 packets of chilly powder containing 100 grams each for sale for human consumption on 1-3-1988.
4. Dhani Ram, Food Inspector (PW. 1), stated on oath before the trial Court that on 1-3-1988, when he was posted as Food Inspector for the entire local area of District Hoshiarpur vide Punjab Government Notification No. E-4-l-Pb-73/187, dated 7-12-1973 under Section 9 of the Act alongwith Dr. H. P. Bhatia (PW-2) inspected the shop of the accused-Raman Kumar at Krishan Nagar, Hoshiarpur. He further stated that he disclosed his identity to the accused and showed his intention to have the sample of the Food articles. He tried to join independent witnesses but no one was available and in that event he requested Dr. H.P. Bhatia to become a witness for which Dr. Bhatia agreed. The accused Raman Kumar was found having in his possession 12 packets containing 100 grams each which were wrapped in polythene wrappers, and on which it was printed as M & S Kashmiri Mirch Chillies Powder M.S. Company Delhi Trade Mark. The same packets were kept by the accused in his shop for sale for human consumption. He served a notice Ex. P. A on the accused. It was signed by the accused and attested by the witness. Out of 12 packets, aforesaid, he purchased 6 packets for Rs. 18/- vide receipt Ex. PB which was signed by the accused and attested by the witnesses. The accused produced no bill of purchase and also did not produce any food licence under the Act for the year 1987-88. The purchased packets were made into three packets containing two packets in each parcel. Each Parcel was labelled wrapped in a strong thick khakhi paper and a paper slip bearing serial No. 25529 Code No. JN-87/88 and signatures of the L.H.A. Hoshiarpur were pasted on each parcel lengthwise covering top and bottom of each parcel and making the ends of slip join with the help of gun, Each sample parcel was fastened with a strong thread and was sealed with his own seal bearing letters D. Ram at four distinct places as prescribed. Each sample parcel was got signed by the accused in such a way that one portion of the signature was on the slip and the other portion on the wrapper. He also signed in the same manner, and put his sample number as Dr-83/88/H. He prepared spot memo. Ex. PC which was signed by the accused and attested by the witnesses. One sealed sample parcel was sent to the Public Analyst Punjab, Chandigarh in a sealed packet along with memo. On form 7 bearing his food Inspector seal impression through Shri Bhuja Ram SSK and a separate memo. On form 7 bearing his seal impression used to seal the sample was also sent to the Public Analysist Punjab, Chandigarh in a sealed envelope separately through the same messanger under intimation to L.H.A. Hoshiarpur. Remaining two sealed portion of the sample along with two memos on form 7 bearing his seal impressions were deposited with the L.H.O. Hoshiarpur in a sealed packets on the same day. On receipt of report of Public Analyst, Punjab, Chandigarh Ex. PD through L.H.A. Hoshiarpur, the samples of Chilli Powder were found adulterated. Consequently, a complaint was filed by him in the Court for prosecution of the accused.
5. After recording preliminary evidence the accused was charged for having committed the offence under Section 16(1)(a)(i) of the Act vide order dated 29-9-88.
6. Prosecution examined Shri Dhani Ram, Food Inspector, as PW-1, Dr. H.S. Bhatia as PW-2 and Shri Onkar Singh, Clerk of the office of Civil Surgeon, Hoshiarpur as PW-3.
7. The accused when examined under Section 313, Cr. P.C. denied all the material allegations of the prosecution put to him and complained of false implication. However, he did not produce any defence evidence.
8. After hearing the counsel for the both the parties and going through the record of the case, the Chief Judicial Magistrate, Hoshiarpur vide his order dated 3-12-1991 acquitted the accused of the charge framed against him.
9. The accused was acquitted by the C.J.M. Hoshiarpur on the following grounds :
i) The Food Inspector Dhani Ram violated the provisions of Rules 14 and 16 of the Prevention of Food Adulteration Rules 1955 (hereinafter to be called as 'the Rules') by not taking the sample of chilly powder in sealed containers but rather taking it in the original packet.
ii) Food Inspector, Dhani Ram failed to call at least two independent witnesses while taking the sample of chillies from the possession of the accused without any cogent reasons and, thus, had not complied with the provisions of Sub-section 7 of Section 10 of the Act.
10. Before proceeding further, letusre-produce the relevant Section of the Act and the Rules.
11. The relevant portion of Section 16 of the Act under which the accused was alleged to have committed the offence is re-produced as under :
16. Penalties - (1) Subject to the provisions of Sub-section (1-A), if any person -
(a) Whether by himself or by any other person on his behalf, imports into India or manufactures for sale, or stores, sells or distributes any article of food -
(i) which is adulterated within the meaning of Sub-clause (m) of Clause (ia) of Section 2 or misbranded within the meaning of Clause (ix) of that section or the sale of which is prohibited under any provision of this Act or any rule made thereunder or by an order of the Food (Health) Authority;
xxxxxx xxx xxx he shall, in addition to the penalty to which he may be liable under the provisions of Section 6, be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years, and with fine which shall not be less than one thousand rupees;
Provided that -
(i) if the offence is under Sub-clause (i) of Clause (a) and is with respect to an article of food, being primary food, which is adulterated due to human agency or is with respect to an article of food which is misbranded within the meaning of Sub-clause (k) of Clause (ix) of Section 2.
12. The relevant of Section 10 of the Act is reproduced below :
10. Powers of food inspectors (1) A food inspector shall have power :-
(a) to take samples of any article of food from -
(i) any person selling such article;
(ii) any person who is in the course of conveying, delivering or preparing to deliver such article to a purchaser or consignee;
(iii) a consignee after delivery of any such article to him;
xxx xxx xxx (2) Any food inspector may enter and inspect any place where any article of food is manufactured, or stored for sale, or stored for the manufacture of any other article of food for sale, or exposed or exhibited for sale or where any adulterant is manufactured or kept, and take samples of such articles of food or adulterant for analysis.
xxxxxx xxx xxx (4) If any article intended for food appears to any food inspector to be adulterated or misbranded, he may seize and carry away or keep in the safe custody of the vendor such article in order that it may be dealt with as hereinafter provided and he shall, in either case, take a sample of such article and submit the same for analysis to a public analyst. Provided that where the food inspector keeps such article in the safe custody of the vendor he may require the vendor to execute a bond for a sum of money equal to the value of such article with one or more sureties as the food inspector deems fit and the vendor shall execute the bond accordingly.
xxx xxx xxx xxx (7) Where the food inspector takes any action under Clause (a) of Sub-section (1), Sub-section (2), Sub-section (4) or Sub-section (6), he shall, call one or more persons to be present at the time when such action is taken and take his or their signatures.
13. Part V of the Rules regarding sealing, fastening and despatch of samples are reproduced as under:
14. Manner of sending samples for analysis :- Samples of food for the purpose of analysis shall be taken in clean dry bottles or jars or in other suitable containers which shall be closed sufficiently tight to prevent leakage, evaporation, or in the case of dry substance, entrance of moisture and shall be carefully sealed.
15. Bottles or containers to be labelled and addressed:-All bottles orjars or other containers containing samples for analysis shall be properly labelled and the parcels shall be properly addressed. The label on any sample of food sent for analysis shall bear :-
(a) Code number and serial number of the Local (Health) Authority;
(b) Name of the sender with official designation, if any;
(c) xx xx (omitted);
(d) Date and place of collection;
(e) Nature and quantity of preservative, if any, added to the sample :
Provided that in the case in sample of food which has been taken from Agmark sealed container, the label shall bear the following additional information :
(a) Grade;
(b) Agmark label No. /Batch No.
(c) Name of packing station.
16. Manner of packing and sealing the samples :- All samples of food sent for analysis shall be packed, fastened and sealed in the following manner namely :-
(a) The stopper shall first be securely fastened so as to prevent leakage of the contents in transit.
(b) The bottle, jar or other container shall then be completely wrapped in fairly strong thick paper. The ends of the paper shall be neatly folded in and affixed by means of gum or other adhesive.
(c) A paper slip of the size that goes round completely from the bottom to top of the container, bearing the signature and code and serial number of the Local (Health) Authority, shall be pasted on the wrapper, the signature or the thumb impression of the person from whom the sample has been taken being affixed in such a manner that the paper slip and the wrapper both carry a part of the signature or thumb impression :
Provided that in case, the person from whom the sample has been taken refuses to affix his signature or thumb impression, the signature or thumb impression of the witness shall be taken in the same manner.
(d) The paper cover shall be further secured by means of strong twine or thread both above and across the bottle, jar or other container, and the twine or thread shall then be fastened on the paper cover by means of sealing wax on which there shall be at least four distinct and clear impressions of the seal of the sender, of which one shall be at the top of the packet, one at the bottom and the other two on the body of the packet. The knots of the twine or thread shall be covered by means of sealing wax bearing the impression of the seal of the sender.
17. Manner of despatching containers of samples: The containers of the samples shall be despatched in the following manner, namely :-
(a) The sealed container of one part of the sample for analysis and a memorandum in Form VII shall be sent in a sealed packet to the public analyst immediately but not later than the succeeding working day by any suitable means.
(b) The sealed containers of the remaining two parts of the sample and two copies of the memoranda in Form VII shall be sent in a sealed packet to the Local (Health) Authority immediately but not later than the succeeding working day by any suitable means:
Provided that in the case of a sample of food which has been taken from container bearing Agmark seal, the memorandum in Form VII shall contain the, following additional information namely :-
(a) Grade;
(b) Agmark label No. /batch No.
(c) Name of packing station.
18. Memorandum and impression of seal to be sent separately :- A copy of the memorandum and specimen impression of the seal used to seal the packet shall be sent, in a sealed packet separately to the Public Analyst by any suitable means immediately but not later than the succeeding working day.
14. It may be noted that in the case in hand, the Food Inspector had purchased six packets out of 12 packets of 100 gms. each which were wrapped in polythine papers and on which it was printed as Kashmiri Mirch Chillies Powder M.S. Company, Delhi Trade Mark. The so purchased packets were made into three packets containing 2 packets in each parcel. Each parcel was labelled wrapped in a strong thick khakhi paper and a paper slip bearing serial number and signatures of L.H.A., Hoshiarpur were pasted on each parcel length wise covering top and bottom of each parcel and making the ends of slip join with the help of gum. Each sample parcel was fastened with a strong thread and were sealed with the seal of the Inspector at four distinct places as prescribed. Each sample parcel was got signed by the accused in such a way that one portion of the signature was on the slip and other portion on the wrapper. The Food Inspector also signed in the same manner and put his sample number.
15. In the case in hand, thus, the packets purchased by the Food Inspector were not put in any container. Each packet was wrapped in a thick khaki paper as provided in Rule 16 of the Rules.
16. By this reference, we are called upon to decide as to whether a sample taken in a wrapper of strong thick paper is in violation of Rules 14 and 16 of the Rules. From the facts of the case, it may be taken that the sample was taken as such which was contained in a polythene wrapper and then wrapped in a thick khaki paper under Rule 16 of the Rules.
17. We will advert ourselves to decide the question as to whether a polythene container or a wrapper of strong thick paper are covered under the definition of other suitable container as provided under the provisions of Rule 14 of the Rules.
18. The expression other suitable container used in Rule 14 of the Rules cannot be defined as such and this expression suitable container cannot be confined in a straight-jacket. There may be scores of suitable containers as defined in the rules and as such it is difficult to furnish with exactitude the list of such suitable containers.
19. The only point to be determined is as to whether a polythene container or a wrapper of strong thick paper can be called suitable containers as defined in Rule 14 of the Rules. Rule 14 provides that samples of food for the purpose of analysis shall be taken in clean dry bottles or jars or in other suitable containers, which shall be closed sufficiently tight to prevent leakage, evaporation, or in the case of dry substance, entrance of moisture and shall be carefully sealed. A reading of the rule gives us a clear impression that other suitable containers mentioned in the rule connotes that it should be as hard as bottles and jars and also could be closed sufficiently tight to prevent leakage, evaporation and in the case of dry substance entrance of moisture. The words bottles and jars are generally understood as closed bottles or blass jars.
20. When interpreting other suitable containers, the provisions contained in Rule 14 of the Rules have to be read as a whole and the words suitable container takes the hue from the words used in the rule itself. The words bottles or jars mentioned before other suitable container in Rule 14 itself indicates that a suitable container should be as hard as a closed bottle or as a glass jar. The expression used in Rule 16(a) which reads as under:
16(a). The stopper shall first be securely fastened so as to prevent leakage of the contents in transit.
is also indicative of the fact that the container stipulated in Rule 14 will have a stopper also. With the advancement of time some other containers are also available which are as hard as closed; though they may be made of some other hard substance like tin, hard plastic or other material like the one in which we get tooth, paste, cream etc. In sum and substance a suitable container as defined in Rule 14, should be of an inpervious character which should be closed sufficiently tight and carefully sealed to prevent leakage, evaporation or entrance of moisture.
21. In our considered view, polythene containers or a wrapper of strong thick paper cannot conform to a definition of container as contained in Rule 14 of the Rules. The polythene bags or a thick paper have got a chance of being pierced. They are most susceptible to moisture, rodents, pests and can even burst with a little more pressure put on them. Such type of containers are not in a position of being closed tightly to prevent leakage etc. A thick paper packet has the chance of even being completely wet and again is unable to prevent entering moisture into it. There are every chances of such type of containers being affected as stated above not by design but even by chance when in transit i.e. after the sample is taken by the Food Inspector in such containers and thereafter it reaches the laboratory for final analysis.
22. In Food Inspector, Bhimvaram Municipality v. Kapouravari Venkateswarulu 1994 Cri LJ 414, a Division Bench of Andhra Pradesh High Court, with respect, did not give any reasons as to how the polythene bags could stand the test of a suitable container as defined in Rule 14 of the Rules. It has only been mentioned in that judgment which reads as under (Para 5):
It is elementary that a 'container' means that which contains, and ordinarily cannot exclude a container made of polythene.
23. The legislature in its wisdom has used the expression a suitable container in Rule 14. This expression must be given its cogent and reasonable meaning on the one hand and should be interpreted in a manner so as to ensure the implicit protection available to an accused under these provisions on the other hand. The view expressed by the Division Bench of the Andhra Pradesh High 'Court has also indicated such meaning by holding that ordinary container may not exclude a container of polythene. Suitability of a container emphasis the need that such a container should be one which would prevent leakage, evaporation and entrance of moisture. In other words, suitable container must also exclude the possibility of its being tampered with in the ordinary course of nature. Once the container satisfies these conditions it would be a suitable container and then the concerned Inspector is obliged to satisfy the requirements of Rule 16 of the Rules with regard to collection and sealing of the sample.
24. In view of our discussion made above, we cannot consider a container made of polythene and a thick paper wrapper as a suitable container as contemplated under Rule 14 of the Rules.
25. We respectfully disagree with the views expressed by the Hon'ble Judges in Food Inspector, Bhimavaram Municipality's case (1994 Cri LJ 414) (supra), wherein it has been held that a polythene container is a suitable container as defined in Rule 14 of the Rules. The reference is, thus, returned accordingly by holding that a polythene container or a thick paper wrapper are not suitable containers as envisaged under Rule 14 of the Rules.
26. The learned Counsel for the appellant-State submits that though the compliance of provisions of Section 10(7) of the Act is mandatory but their non-compliance does not vitiate the trial or the conviction of the accused if the Food Inspector was unable to associate independent witnesses at the time of search and recovery and purchase of food article. The Food Inspector as P.W.I has stated at the trial that he tried to join independent witnesses but no one was available and, thus, he requested Dr. H. P. Bhatia for which he agreed to. become a witness. In order to substantiate his argument he has relied upon AIR 1974 SC 789 : 1974 Cri LJ 672 Ram Lobhaya v. Municipal Corporation of Delhi; and (1983) 2 Rec Cri 285 : 1983 Cri LJ 81 (Ker) (FB), Food Inspector v. prabhakaran.
27. Learned Counsel submits that it has been held by the Supreme Court in Ram Lobhya' s case (supra) that the testimony of the Food Inspector if believed can sustain the conviction if he is unable to secure the presence of independent persons. Learned Counsel then stated that in Food Inspector's case (1983 Cri LJ 81) (supra), it has been held by a Full Bench of the Kerala High Court as under (at p. 87 of Cri LJ) It is, therefore, clear that it must not be correct to say that provision in Section 10(7) is mandatory in the sense that when once it is shown that there has been non-compliance of the section, the prosecution automatically fails.
He has relied upon Mool Chand v. State of Punjab 1981 Chand Cri C 229 : 1982 Cri LJ 201 (Punj & Har).
28. In these circumstances, the learned Counsel submits that it should be inferred from the statement of the Food Inspector as described above that he was unable to secure the presence of independent persons and, thus, the judgment of acquittal of the trial Court on the point that the Food Inspector did not comply with the mandatory provisions of Section 10(7) to procure the independent witnesses may be set aside.
29. We need not to go to any other case law including in Food Inspector's case (1983 Cri LJ 81) (Ker) (FB) (supra) and Mool Chand's case (1982 Cri LJ 201) (Punj & Har) (supra), as in those cases Ram Lobhaya's case (1974 Cri LJ 672) (SC) has been relied upon.
30. It is undisputable that the law laid down in Ram Lubhaya's case (supra) about the mandatory nature of provisions of Section 10 of the Act is the last word. Though it has been held in Ram Lobhaya' s case by the Supreme Court that the testimony of the Food Inspector if believed can sustain the conviction if he is unable to secure the presence of independent persons but it has to be seen when and in what circumstances it can be held that the Food Inspector was unable to secure the presence of independent persons. It has then been ruled in the same judgment that non-compliance of Section 10(7) of the Act would not vitiate the trial when the Food Inspector was unable to join the independent witnesses but at the same time it has been held that provisions of Section 10(7) of the Act are mandatory and it was specifically observed by the Hon'ble Judges of the Supreme Court that this ought not to be understood as minimising the need to comply with the salutary provision in Section 10(7) which was enacted as a safeguard against possible allegations of excesses or unfair practices by the Food Inspector.
31. In view of the law laid down by the Supreme Court, thus, in order to rely upon the testimony of the Food Inspector would it be sufficient for the Food Inspector to mention at the trial that he tried to secure the presence of independent persons but none was available.
32. In our considered view, some positive evidence is needed on the basis of which testimony of the food Inspector deposing at the trial that he was unable to secure the presence of independent witnesses, could be believed. His testimony at the trial needs corroboration and what type of corroboration would satisfy the Court's conscience shall depend upon the facts of each and every case. However, there should be some evidence showing his inability to join the independent witnesses. His efforts to join the independent witnesses should be reflected from some documents prepared at the spot or from some statement or record prepared by him in writing wherein he mentions as to what type of efforts he made to secure the presence of independent witnesses and how he failed to secure the same. For example, he says that he sent some persons to get an independent witness but none was available or even if there were some present they refused to join as witnesses. We mean to say that genuine efforts of the Food Inspector for joining the independent witnesses should be reflected from some documents which could be prepared by him at the time of taking the sample of food article from the accused or earlier or even later. In the absence of such genuine efforts, we cannot hold that mandatory provisions of Section 10(7) should be deemed to have been complied with by the Food Inspector.
33. In these circumstances, it will be difficult to rely upon the official witnesses only and particularly so when it has been ruled by the Supreme Court in Ram Lobhaya's case (1974 Cri LJ 672) (supra), that non-compliance of Section 10(7) would not vitiate the trial when the Food Inspector was unable to join the independent witnesses but it ought not to be understood as minimising the need to comply with the salutary provision in Section 10(7) which was enacted as a safeguard against possible allegations of excesses or unfair practices of the Food Inspector and that provisions of Section 10(7) are mandatory.
34. We thus, hold that the provisions of Section 10(7) are mandatory but their non-compliance itself would not vitiate the trial if there exists proper documentary evidence to show before the Court that it was not practically possible for the Food Inspector to secure the presence of independent witnesses. If there exists proper documentary evidence to show before the Court that it was not practically possible for the Food Inspector to secure presence of independent witnesses, this obviously would include an effort on his part to ensure presence of independent witnesses in which he may fail in spite of efforts. In such circumstances the collection of sample in the presence of members of the staff of the Food Inspector or his team may be termed as sufficient compliance of these provisions.
35. In the case in hand, we do not find any evidence on record except the bald assertion of Dhani Ram, P. W. 1 Food Inspector which reads as under:
I tried to join independent witnesses but no one was available. So I requested Dr. H. P. bhatia for which he agreed to become a witness.
36. This bald assertion of the Food Inspector does not inspire confidence and cannot persuade the Court to come to a conclusion that the Food Inspector made any genuine efforts to join the independent witnesses but he was unable to do so from the evidence available on the record.
Food Inspector, Dhani Ram, P.W.I, has admitted in this cross-examination which reads as under:
Along with the raiding party, I went to the shop of accused through Court road and through the street nearby Himalaya Dry Cleaners in Krishna Nagar. Court road is a thoroughfare and there are also shops. Shop of the accused is situated in thickly populated residential localit....
In the documents prepared by me at the spot, no mention of the fact that no one was available at the time of taking sample, was made.
37. It is undisputed that Dr. H. P. Bhatia who was made a witness by the Food Inspector was a member of the raiding party itself. It has been stated by P. W. 1, Food Inspector, Dhani Ram, in his examination-in-chief at the trial that he along with Dr. H. P. Bhatia inspected the shop of Raman Kumar, accused. Dr. H. P. Bhatia, P.W.2, has also stated in his examination-in-chief that on 1-3-88 at 10 a.m., he accompanied Dhani Ram, Food Inspector, Hoshiarpur, in food sampling raid and he under his supervision inspected the shop of Raman Kumar, accused. It is again noticeable that Food Inspector, P.W.I, has admitted in his cross-examination that Dr. H. P. Bhatia, P.W.2, had been signing his documents in other samples also.
38. In these circumstances, we are unable to believe that Food Inspector was unable to secure the presence of independent witnesses.
39. In view of our discussion made above, the appeal against acquittal of the respondent by the learned Chief Judicial Magistrate, Hoshiarpur filed by the State fails and is dismissed.